Middleton v. City of St. Augustine , 42 Fla. 287 ( 1900 )

Per Curiam.

(After stating the facts.)

The appeal is from the order of the court sustaining the demurrer to the amended and supplemental bills. The action of the city of St. Augustine in the mater of establishing an electric light plant in said city, and the issuance of bonds in payment therefor, was based upon the powers conferred upon said city by its charter, being Chapter 4636, laws of Florida enacted in 1897. Besides these specific charter powers, the power was conferred generally upon all cities and towns within the State to construct and own electric light plants and to issue bonds in payment therefor by the provisions of Chapter 4600, laws of 1897, but it is not contended for the city of St. Augustine that the provisions of this latter act were invoked in the steps taken to establish its electric light plant, but, on the contrary, that it acted under the provisions of its own special charter powers. These special charter provisions, that are set forth in the statement accompanying this opinion, were amply sufficient to invest the municipality of St. Augustine. with power to erect an electric light plant and to raise the funds therefor by bonds of the city. Jacksonville Electric Light Co. v. City of Jacksonville, 36 Fla. 229, 18 South. Rep. 677.

The bill to enjoin the issuance of the bonds proposed by the city questions the legality of both the ordinance alleged to have been passed by the city council on March 9th, 1899, and the election held thereunder on the 28th day of the same month, on various grounds as shown by the foregoing statement. After the passage of the said ordinance and the holding of the said election thereunder the legislature, of Florida enacted the curative statute, Chapter 4866, approved May nth, 1899, set out in full in the statement above.

Under the provisions of section 8 of Article VIII of the Florida constitution of 1885, the legislature had the power in the first instance to authorize, the municipal corporation of-St. Augustine, through its properly constituted corporate authorities, to. erect and own an electric light plant for supplying light to its citizens or inhabitants, and to issue bonds for such purpose, either with or without the sanction of its individual citizens or taxpayers as expressed in an election. In respect to statutes curing defects in legal proceedings, where they amount to mere irregularities, not extending to matters of jurisdiction, and in the absence of constitutional limitations, Judge Cooley, in his work on Constitutional Limitations, page 457, states the rule as follows : “If the thing wanting, or which failed to be done, and which constitutes the defects in the proceeding, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not bejmnd the power of the legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same in material by a subsequent law.” The rule as here expressed has been established by the great weight of judicial decisions in America. The curative act, Chapter 4866, laws of 1899, as expressed in its title, has undertaken to legalize the municipal election held March 28th, 1899, and to validate the, said city ordinance under which it was held, and to authorize the issue of bonds as therein provided. By the first section of this act the said city ordinance and the said election were legalized and declared to be valid and binding in every respect. By the second section of said act the, city of St. Augustine was authorized to proceed with the issuance of bonds to the amount of $20,000 as provided in and by said ordinance, and in manner and form and in accordance, with such ordinances thereafter passed not in conflict with the validated ordinance; and it was declared that the bonds of said city issued in pursuance of said validated ordinance, and of such ordinance or ordinances as may be passed in connection therewith were valid in manner, form and effect as issued, and to be binding and have full force, virtue and effect in law and equity against the city of St. Augustine. And it was therein declared that the fact that the proposed bonds were to be payable in gold of standard weight and fineness should not affect their validity. Section three of said curative, act declares that said act should be construed to be remedial and curative of any defects or want' of power on the part of said city to pass said ordinance, and to hold said election, and to conduct the same in the manner the same was held and conducted, and to declare the result, and to arrive at such results through those voters who voted at said election, and the legalization of said ordinance and of said election and the issuance of said bonds in pursuance of said ordinance was affirmed as far as the constitution of the State permited and the legislature had power to enact. This curative act, in so far as it could do so, supplied and cured all irregularities and defects in the passage and adoption of the city ordinance and in the calling, holding and conduct of the election had in pursuance thereof; and authorized the city of St. Augustine to proceed with the issuance of the bonds in accordance with the provisions of that ordinance or subsequent ordinances not in conflict with it, but it did not undertake to impose it as a compulsory duty upon such city to issue said bonds. In so far as the curative act is concerned the discretionary power of the city through its proper corporate authorities to issue said bonds or not as it pleases was and is not taken away, but is expressly recognized and not abridged. This legislative act which the city now invokes must be sustained unless it conflicts with some constitutional limitation. It is contended by counsel for the appellants that it was not competent for the legislature to pass the curative act in question under the provisions of section 5 of Article IX of our present constitution, which provides that “the legislature shall authorize the several counties and incorporated cities or towns in the. State to assess and impose taxes for county and municipal purposes, and for no other purposes * * * . But the cities and incorporated towns shall make their own assessments for municipal purposes upon the property within their limits.” It is argued that this provision of our constitution is similar to that in the constitution of Illinois, and that the construction there put upon it in the case of Marshall v. Silliman, 61 Ill. 218, and in other decisions cited from the same State, denies to the legislature the right to validate a void subscription and election for bonds and to direct their issuance, upon the ground that it would be compelling the, municipality to incur a debt for purely a local municipal purpose. The provision in the Illinois constitution thus construed is that “the corporate authorities of counties, townships, schools districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes,” and it seems to be held in that State that under it the legislature can not compel a municipal corporation to incur a debt for a purely local municipal purpose. We do not construe the curative act herein involved as imposing upon the municipality of St. Augustine the compulsory duty of issuing the bonds provided for in the, validated ordinance, nor does it attempt to validate any bonds already issued, and hence it is unnecessary to either approve or disapprove the Illinois cases cited, or to determine whether or not the legislature can compulsorily require a municipality here to contract a debt for a purely local municipal purpose, without its consent or to validate bonds already issued illegally by it. The bill assails the city ordinance, the mode and manner of its adoption, the election held thereunder, and the sufficiency of the notice given of the holding thereof, and the qualification of the. persons who voted thereat, and the form of the bonds proposed by said ordinance in many particulars that it is unnecessary'to repeat here, many of these assaults may be within themselves unfounded or insufficient, independently of the curative act, to defeat the issue of the bonds sought to be estopped, but in no respect or particular is there any defect or irregularity pointed out or alleged against either the, city ordinance or the bonds proposed that it was not within the power of the legislature to cure and validate by subsequent legislation as it has done. In so' far as the alleged defects and irregularities in the election held and as to the qualification of the voters thereat are concerned, it is a complete answer to say that the legislature -had the power to authorize the municipality to issue the bonds in question without and submission at all of the question to an election by the taxpayers of the city, and, consequently, under the rule stated, it had the power by the subsequent curative act to declare that such election as was in fact held was a.sufficient predicate for the proper issuance thereof, even though such election may have been irregular and defective, which fact we do not determine.

The contention that the ordinance illegally confines the furnishing of electric light only to citizens of the city, we think is untenable. It is true that in this connection the ordinance uses the word “citizens” -but we think that it is used therein in its popular sense, including all residents and inhabitants, whether they be technically citizens of the city or not.

It is contended that the ordinance illegally delegates to the board of bond trustees of the city, who are neither officers of the city de jure or de facto, powers and duties exclusively appertaining- to'the city council, but it is not contended that there does not exist an agency of the city known as such board of bond trustees. The constituent members of such board are made parties to the bills herein. The powers confered upon this board to receive and countersign the bonds when issued and to sell the same, and to receive the proceeds thereof, are of a purely ministerial or administrative character, and are properly conferred upon them, as held in the case of City of Tampa v. Salomonson, 35 Fla. 446, 17 South. Rep. 581, and even though it should be conceded that the further powers conferred by the ordinance upon this board to exclusively control the erection of the electric light plant and to expend the proceeds of the bonds therefor and to- operate the. plant when erected are invalid, yet such invalid feature of the ordinance will not affect the other valid features thereof or of the curative act, nor defeat the proper issuance and sale of the bonds, since all of those powers can be exercised only after the bonds are issued and sold. City of Tampa v. Salomonson, supra. The fact that the curative act of die legislature was enacted subsequently to the institution of this suit, but before judgment therin, does not affect the force of validity of such act. Cooley Const. Lim. (6th ed.) 468, 469; Vaughan v. Swayzie, 56 Miss. 704; Sidway v. Lawson, 58 Ark. 117, 23 S. W. Rep. 648.

The further contention that the curative act is a special or local law and is unconstitutional because enacted without the giving of the sixty days’ prior notice provided for in section 21 of Article III of the constitution of 1885, is tmtenable as held in the case of State ex rel. McQuaid v. County Commissioners of Duval County, 23 Fla.483, 3 South. Rep. 193. A careful reading of the curative act will show that the city was authorized thereby to issue the bonds only as were provided for in and by the city ordinance adopted March 9th, 1899, and such subsequent ordinances as were not in conflict therewith. The said ordinance of March 9th, 3899, expressly provides for the issuance of bonds whose interest installments were to be payable only at the city of St. Augustine. It appears, however, from the allegations of an amended supplemental bill herein that the bonds actually proposed to be issued and sold provide, contrary to the provisions of the ordinance of March 9th, 1899, that the interest installments or coupons hereof shall be payable either at St. Augustine or in the city of New York. There is no authority, either by the said city ordinance or by the said curative act of the legislature, for the city to issue any bonds the installments of interest on which can be made payable in New York or at any other place than at the city of St. Augustine, and to issue bonds so constructed would be a material variance and departure from the authority conferred. 1 Daniel on Negotiable Instruments, § 648 et seq. In this particular respect, and inasmuch as the said bonds are still within the city’s control, the bill should have been sustained and the city restrained from selling any bonds that provided New York or any other point than the city of St. Augustine as the place for the payment of their interest installments or coupons.

The decree of the court below is reversed with directions for such further proceedings as shall be consistent herewith.